Out-Law News 1 min. read

Apple and Cisco back Microsoft challenge to US data search powers

Apple and Cisco are supporting attempts by Microsoft to resist handing over customer data stored in Ireland to US authorities.

The companies have submitted documents to a US court in support of Microsoft's challenge, joining telcos Verizon and AT&T, which have already lodged papers with the court.

In April a district court judge in New York rejected claims by Microsoft that a warrant issued to it by US law enforcement to search data the company held was unauthorised because the data was stored outside the US on servers in Ireland. Microsoft is appealing against the ruling.

Civil liberties group the Electronic Frontier Foundation (EFF) has also submitted an 'amicus brief' which claims that the original judgment in the case represents a "fundamental misunderstanding" about how US citizens' constitutional rights to privacy "apply in the digital world" (20-page / 933KB PDF).

In their joint submission, Apple and Cisco said that the district court had not given sufficient thought to how laws in the US conflict with those elsewhere in the world and said that the judge was wrong to have "placed the burden of reconciling conflicting international laws squarely on US providers" when dismissing the application of an international treaty that applies between the US and Ireland.

The companies said that the appeals court should rule that the power of US authorities to obtain a search warrant for electronically stored data should not extend "extraterritorially". They said that the US government should be required to adhere to the mutual legal assistance treaty (MLAT) framework when seeking access to the data US technology companies store abroad on non-US customers.

"The government, not private parties, is best suited to navigate complex sovereignty issues, especially those caused by a novel extraterritorial application of US law," the companies said in their legal papers. "And it has chosen to use the MLAT process to strike the correct balance."

"By disregarding that process, and the laws of the country where data is stored, the [judge's] analysis places providers and their employees at significant risk of foreign sanctions, and threatens a potential loss of customer confidence in US providers generally. It also encourages foreign law enforcement to take reciprocal actions by using equivalent foreign laws to require production of data stored in the United States, despite disclosure prohibitions in US law," they said.

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